The International Criminal Court’s (ICC) recent conviction of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Al Hassan) for war crimes and crimes against humanity undermines the connective tissue binding criminal law to human rights standards. The Trial Chamber’s decision reviews in detail almost every aspect of the proceedings – no mean feat for a case that has stretched from 2017, when Al Hassan was first detained by Malian authorities, until his conviction last month. But despite its heft, the decision mentions only briefly (para. 296) an issue that has hung over the trial from its start: the incorporation of evidence gleaned from a defendant who was, at the time of his questioning with the Office of the Prosecutor (OTP), allegedly experiencing torture and ill-treatment at the hands of national authorities.
The Court’s May 2021 decision to admit such evidence, and the subsequent use of the evidence in the verdict, has implications beyond Al Hassan’s trial. The holding sends a potentially dangerous signal that could undermine the crucial role International Human Rights Law (IHRL) has played in underpinning International Criminal Law (ICL), a point the Court should carefully consider and still has opportunity to redress on appeal.
Alleged Torture and Mistreatment During Al Hassan’s Detention
Al Hassan was a member of Ansar Dine, an al-Qaeda linked militant group, which occupied Timbuktu, Mali, between 2012 and 2013. During that time, Al Hassan served as police chief and a representative of Ansar Dine’s Islamic Court. He was detained by Malian authorities in 2017 and held in a facility co-managed by Malian and French security forces. During his detention at the hands of Mali’s notorious General State Security Directorate (DGSE), Al Hassan was, according to the defense, subjected to torture and cruel, inhuman and degrading treatment (CIDT). The defense presented evidence alleging that, at the hands of the DGSE, Al Hassan was, among other acts, beaten severely, threatened with death, subjected to foot whipping (falaka) and mock executions, suspended from a metal rod, deprived of food and medical care, and held in incommunicado detention for almost a year. The ICC issued an arrest warrant for Al Hassan in March 2018 for his alleged perpetration of torture, rape, sexual slavery and other war crimes, and he was surrendered to ICC custody later that month. The trial began more than two years later, in July 2020.
While detained by the DGSE, Al Hassan was interviewed by the ICC Prosecutor 19 times between July 2017 and March 2018. OTP staff did not personally administer torture, nor were they in the room when Al Hassan was allegedly being tortured by DGSE personnel. Nevertheless, the defense argued that the OTP knew both of widespread abuses in Mali and of the torture inflicted upon Al Hassan, and that this awareness taints the evidence OTP procured during interviews with Al Hassan. The OTP countered that it took sufficient precautionary measures to distinguish its questioning from the treatment Al Hassan was subjected to by Malian authorities (para. 49, fn. 87). The Court agreed, deciding in May 2021 to allow the prosecution to introduce and use the evidence. The defense filed motions to appeal the decision and requested a reconsideration of the decision, both of which the Court rejected.
The Cross-Pollination of Standards
Al Hassan’s conviction relied on the Court’s May 2021 decision to allow evidence the defense argued should be excluded (para. 72). In its motion to exclude evidence, the defense argued that Article 69(7) of the Rome Statute requires the Court “to ensure that its judgment is not tainted through reliance on evidence that falls foul of this provision” and that once a question about the admissibility of evidence is raised, “the Prosecution must establish that those issues do not preclude the submission of its evidence.” (para. 2).
Article 69(7) of the Rome Statute precludes the inclusion of evidence “obtained by means of a violation of this Statute or international recognized human rights” if the violation undermines the reliability of the evidence or would damage the integrity of the proceedings.
The Court initially appeared to agree with the defense, writing that, “if a challenge is made to the admissibility of evidence, the burden rests with the party seeking to introduce the evidence,” noting that because the defense raised the questions around admissibility the burden “rests with the Prosecution.” (para. 36). But in the very next paragraph, the judges added that the party bringing the motion to exclude evidence “bears the burden to show that the criteria for the exclusion of evidence has been met.” The Court concluded that “this approach reflects the plain wording and intent of Article 69(7) and accordingly in the present case it is for the Defence to substantiate its arguments that the Statements should be excluded.” (para. 37).
Next, the Court turned to what such “substantiation” requires, finding that the inquiry “will depend on the nature of the violation or breach alleged in each particular instance.” (para. 37). In Al Hassan’s case, because the alleged conduct related to torture and CIDT, the Court “considered the approach of other courts and tribunals on this issue to discern an appropriate standard.” (para. 38). It looked to the European Court of Human Rights (ECtHR), which has used a “real risk” standard when “determining whether evidence was obtained through torture.” (para. 38). The Court considered the “real risk” approach “instructive” for “this particular case,” finding that the defense “must show a real risk that the evidence in question was obtained by means of torture or CIDT.” (para. 38).
The ECtHR has deployed the “real risk” test to determine whether the defendant faces a real risk of torture or CIDT. If the real risk test, as applied in El Haski v. Belgium, is met, the evidence derived must be excluded. In that case, the ECtHR recognized that the objecting party might be unable to prove that each individual piece of evidence was obtained under torture due to the opaque conditions under which detention facilities typically operate. To redress the asymmetry of information, the Court lowered the moving party’s burden of proof (para. 88). The ECtHR required the defendant, Lahoucine El Haski, to show not that torture did in fact produce the statements in question, but instead that there was a “real risk” that the statements in question might have been obtained as a result of torture (para. 92). To hold otherwise would (1) violate the defendant’s right to a fair trial (Article 6 European Convention on Human Rights), and (2) undermine a State’s obligation to take positive steps to discourage torture and CIDT, even when such conduct occurs beyond its jurisdiction.
Historically, the ICC has relied on IHRL norms even as it has developed its own robust jurisprudence. Cross-pollination is consistent with the Rome Statute. Article 21(3) of the Rome Statute stipulates that “the application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights.” The distinction accorded to IHRL standards has led scholars to call Article 21(3) a “quasi-constitutional” provision, akin to the general incorporation of human rights norms in a national constitution. The text of Article 21(3) indicates that human rights are doubly inscribed into the practice of the ICC (para. 37). First, the Court’s application of ICL must not transgress the limits imposed by IHRL. Second, IHRL must be layered over the Court’s jurisprudence, such that the interpretation of ICL accords with IHRL norms. Where the use of “application” is constraining, the invocation of “interpretation” is welcoming; IHRL standards are used to fill the normative fissures in ICL, the rules not expressly provided in the Rome Statute, Rules of Procedure and Evidence, or the Regulations of the Court.
The Court indicated its willingness to implement the “real risk” test in line with the ECtHR (para. 38). After stipulating that the test would inform its holding, however, the Trial Chamber proceeded to apply a modified version of the “real risk” test in its analysis, one that over-emphasized the importance of a “causal link” between the statements and CIDT and flipped the burden of proof to the defense. Instead of scrutinizing whether the defense had offered evidence that the circumstances of the defendant’s confinement as a whole were tantamount to torture or CIDT, the Court assessed whether specific elements of the defendant’s testimony to the OTP were procured through torture or CIDT. The Court found they were not; according to the judges, the measures the OTP had taken to distinguish its own interrogation from the harsh treatment of national security forces were sufficient to screen the interrogation from the taint of torture (paras. 49-53). In particular, the Court found that OTP’s decision to interrogate Al Hassan in a separate facility and reassurances that it had no control over DGSE conditions were sufficient to sever any causal connection between the prosecution’s procedures and the conduct of Al Hassan’s captors (para. 49).
Central to the Court’s conclusion is a reading of Article 69(7) of the Rome Statute that violates the spirit of the real risk test. The chapeau of that article reads “evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible.” The Court interpreted the phrase “by means of a violation” to mean that evidence may only be excluded under Article 69(7) when the “specific evidence” obtained by the OPT – as opposed to the “general conditions applicable in the situation where the investigations and evidence are occurring – was tainted by torture (para. 42). The real risk test deliberately eschews an analysis of the connection between torture and specific evidence. Instead, courts using the real risk test are obliged to accept the assertion that, in general, there was a real risk that conditions of torture or ill-treatment occurred. In El Haski, the ECtHR explicitly incorporated a scenario similar to that of Al Hassan, where the moving party was tortured not directly by the other party, but by a third party. In that case, the ECtHR held that the real risk test excluded evidence when torture could be “imputed to the authorities of the forum State or to hose of a third state and the victim may be the actual defendant or a third party” (para. 87).
The real risk test is meant to protect defendants who may find it difficult to prove the existence of torture in detention facilities to which they have limited access. By accepting the OTP’s assurances about the steps it took to distance itself from the national security forces, the ICC ignored the purpose of the test. The Court’s decision on the exclusion of evidence suggests a willingness on the part of the ICC to accept evidence obtained during a period of torture or CIDT because of the practical limitations on ICC investigations.
After all, the ICC prosecutors must cooperate with State officials to interview subjects, and prosecutors will have limited control over conditions of detention. The recognition of this practical hurdle, however, should not extend to the incorporation of testimony obtained while the defendant was experiencing torture or CIDT. This practical accommodation of torture and CIDT undermines the ICC’s obligation to deter its national partners from engaging in torture and CIDT, and risks compromising the integrity of the Court’s standards for evaluating and admitting evidence.
Implications for Human Rights at the ICC
In a June 2020 motion to terminate the proceedings for abuse of process, the defense argued that the Court neglected the positive obligations that flow from the prohibition on torture (para. 10). To buttress its argument, the defense cited the Istanbul Protocol promulgated by the U.N. Office of the High Commissioner for Human Rights (paras. 42, 48). The Istanbul Protocol sets out minimum standards for the inclusion of evidence obtained from detained torture victims. According to the defense, OTP officials violated the guidelines set by the Istanbul Protocol by continuing to interview Al Hassan even when confronted with obvious signs of torture (para. 42).
The Court responded by claiming that the peremptory norm (jus cogens) obligation to suppress, prevent, and discourage testimony obtained by torture applies only to State officials and need not be assessed in light of the limited powers of the prosecution in Al Hassan’s case (para. 64). Further, the Court dismissed the soft law cited by the defense as non-binding and “of limited relevance for assessing the conduct and duties of the prosecution in the context of an application for termination of the proceedings for abuse of process” (para. 65). Finally, jurisprudence from the ECtHR and HRC deals only with State complicity and does not apply, according to the Court.
The principle of complementarity on which the Rome Statute is based means that the ICC has jurisdiction when national courts are unwilling or unable to act. Given that the ICC is meant to fill a vacuum left by faltering national courts, why should the ICC be held to a lower standard than national courts when it comes excluding evidence gleaned from torture? The suggestion that positive obligations to suppress, prevent, and discourage torture only applies to national courts is contrary to the spirit of the ICC.
The defense team has signaled its intention to appeal Al Hassan’s conviction. The ICC’s Appeals Chamber would do well to reconsider not only the probative value of evidence obtained through torture or CIDT, but the potentially deleterious effects of severing international criminal evidentiary standards from their normative grounding in human rights law.